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The special verdict finds in this case that the petitioners were slaves the property of John Marshall, in Loudon County in the State of Virginia, and upon his death, became the property of the Defendants in this action. if they are not entitled to freedom by virtue of a certain paper not in the handwriting of the deceased and attested by one witness, which said paper was offered for, probate by one of the executors, therein named, and refused and no other steps taken thereon.
The Defendants contend that this paper, under the laws of Virginia, does not entitle to freedom, the plaintiffs that it does. The first position of Defendants is, that this paper, to entitle to freedom, ought to have been probated
No other mode than that prescribed will be effectual
A Deed executed in Ohio, but having reference to Virginia, will be void, unless it conforms to the laws of Va.
If probate of the will be refused Mandamus, is the remedy.
The law upon this subject, is be found in
It prescribes that any person, by last will and testament or any other instrument of writing under hand and seal, attested by two witnesses, and proved in the County or Corporation Court or acknowledged by the party, in the court of the County, were she resides may emancipate his slaves.
In
had assented to the Legacy. that they enjoyed their freedom for more than six years. and that all other estate should be exhausted before they should be sold into slavery.
The deeds of emancipation are not recorded.
A will written by testator all with his own hand, and proved to be so, by two witnesses and recorded but not sealed, nor attested by two subscribing witnesses, is duly executed and proved to emancipate slaves, because decided to be so for the transfer of real estate.
On the authority of this case then, the exception to the requirement of two witnesses to a will of emancipation is where the will is wholly in the handwriting of the testator, and the reason because, such a probate of a will of real estate would be sufficient.
In
I have shewn, that the law of Virginia, and all the dicisions are, that no deed or will of emancipation can be valid, unless attested by two witnesses, or written wholly in the hand writing of the testator.
A most extraordinary idea, however, seems to be started, that there are Virginia cases, which will carry out, what is called the intent of the Testator, in Equity in favor of a will the probate of which and the validity of which the law the law absolutely repudiates. This is, indeed, a new notion of Equity, to repeal law, all that the Courts of Virginia have said, is that the Courts of Equity are open to petitioners for freedom, as well as those of the common law That the more exact and extensive redress, which such tribunals are constituted, for the express purpose of affording will not be denied them, but that Equity can afford relief against express law, by repealing it, by allowing a case to be proved by one witness, which the Legislature says can be proved only by two, is surely, hardly, a matter of argument. This is all the cases establish, such is the case in give jus decree finally whether he was or not, one of the grounds of freedom was illegal importation into Virginia.
Argument.
In case of Keene's negroes.
Trummel & oth vs Robinson & Keene.
Mr. Hoban's argument recd by W. Cr. 4 Jany 1845.
Mr R. J. Brent to send his argument & the Judgt of the Ct to be as of Novr term 1844